LexCOMMISSIONER OF CENTRAL EXCISE, MUMBAI versus M/S. HINDUSTAN SPINNING & WVG. M. LTD. AND ANR.
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[2009] 6 S.C.R. 478 A COMMISSIONER OF CENTRAL EXCISE, MUMBAI B c v. M/S. HINDUSTAN SPINNING & WVG. M. LTD. AND ANR. (Civil Appeal No. 5848 of 2006) APRIL 16, 2009 [DR. ARIJIT PASAYAT AND ASOK KUMAR GANGULY, JJ.] Circulars/Government orders/Notificafi.on: Question as to whether circulars issued by authorities were binding on Courts/Tribunal was referred to larger Bench in Rattan Metting's case - Present matter was kept for disposal after decision of Rattan Metting's case in reference 0 - Reference answered in that case - Present matter remanded to Tribunal for decision in view of applicability and/or relevance of Rattan Metting's case - Appeal and interim application disposed of. Commissioner of Central Excise, Bolpur v.Ratan Melting E & Wire Industries (2008) 13 SCC 1; Commissioner of Central Excise, Bolpur v. Ratan Melting and Wire Industries, Calcutta (2005) 3 SCC 57; Collector of Central Excise v. Dhiren Chemical Industries (2002) 2 SCC127; Collector of Central Excise v. Usha Martin Industries (1997) 7 SCC 47; Kalyani F Packaging Industry v. Union of India and Anr. (2004) 6 SCC 719, referred to. Case Law Reference: (2008) 13 sec 1 referred to Para 2 G (2005) 3 sec 57 referred to Para 3 (2002) 2 sec 121 referred to Para 3 (1997) 1 sec 47 referred to Para 3 H 478 COMMNR. OF CENTRAL EXCISE, MUMBAI v. 479 HINDUSTAN SPINNING & WVG. M. LTD. (2004) 6SCC 719 referred to Para 3 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5848 of 2006. A From the Judgment & Order dated 25.7.2005 of the High Court of Customs. Excise and Service Tax Appelate Tribunal, B West Zonal Bench at Mumbai in _Appeal No. E/3568/2004. E 1510/04. Mohan Par~saran, ASG, Ashok K. Shrivastava, N.K. Bajpai, Anil Katiyar and B. Krishna Prasad for the Appellant. Darius B. Shroff, B.V. Panjuani, Ajay Kumar Jha, Sameer Parekh, Rukhmani Bobde, Divya Sinha, Parthir Gsowami, Parekh & Co., V. Sridharan, Prakash Shah, Jay Savla, Arundhati Das and Rajpal Singh for the Respondents. The Judgment of the Court was delivered by DR. ARIJIT PASAYAT, J. 1. Heard learned counsel for the parties. c D 2. By order dated 12.12.2006 this court had directed that E the present matter be placed for disposal after the decision of this Court in CCE v. Ratan Melting & Wire Industries, which had been referred· to a larger bench. The larger bench has rendered its judgment in the matter on 14.10.2008 which is reported in Commissioner of Central Excise, Bo/pur v. Ratan F Melting & Wire Industries [2008 (13) SCC 1]. 3. On a reference made by a Bench of three Judges in Commissioner of Central Excise, Bolpur v. Ratan Melting and Wire Industries, Calcutta (2005 (3) SCC 57), these matters G were placed before the Five Judge Bench. The reference was necessitated because of certain observations by a Constitution Bench in Collector of Central Excise v. Dhiren Chemical Industries (2002 (2) SCC 127). During the hearing of the appeal before the three-Judge Bench it was fairly conceded by H 480 SUPREME COURT REPORTS [2009] 6 S.C.R. A the parties that the decision of this Court in Collector of Central Excise, Patna v. Usha Martin Industries (1997 (7) SCC 47) on which the Customs, Excise and Gold (Control) Appellate Tribunal placed reliance was over-ruled by the subsequent decision of the Constitution Bench in Dhiren Chemical's case B (supra). But learned counsel for the assessee-respondent submitted that paragraph 11 of Dhiren Chemical's case (supra) operates in its favour. It reads as under: c D E F G H "We need to make it clear that regardless of the interpretation that we have placed on the said phrase, if there are circulars which have been issued by the Central Board of Excise and Customs which place a different interpretation upon the said phrase, that interpretation will be binding upon the Revenue." 4. It was noted by the three-Judge Bench that the effect of the aforesaid observations was noted in several decisions. In Kalyani Packaging Industry v. Union of India and Anr. (2004 (6) sec 719), it was noted as follows: "We have noticed that para 9 (para 11 in SCC) of Dhiren Chemical case (2004 (6) SCC 722) is being misunderstood. It, therefore, becomes necessary to clarify para 9 (para 11 in SCC) of Dhiren Chemical case (2004 (6) SCC 722). One of us (Variava, J.) was a party to the judgment of Dhiren Chemical case and knows what was the intention in incorporating para 9 (para 1
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